Pepper Bryars: While the Supreme Court deliberates, Alabama should shine the light on asset forfeiture

Share this post?

The U.S. Supreme Court recently signaled that it’s ready to limit the government’s power to confiscate things like cars, houses, and cash that prosecutors have proven, or maybe just reasonably suspect, were involved in crimes.

The court heard oral arguments related to Indiana’s use of the power, known as asset forfeiture, to confiscate a $42,000 vehicle — a value nearly four times the maximum fine for the underlying crime. Specifically, the court is looking at whether the state is subject to the Eighth Amendment’s ban on imposing excessive fines.

But because the justices seemed so skeptical of asset forfeiture overall, some court watchers predict that while the impending ruling may not abolish the practice completely, it could have deep and wide-ranging impacts.

Including here in Alabama.

Our state’s asset forfeiture law has become increasingly controversial because it allows something called civil asset forfeiture, a maneuver in which law enforcement agencies legally seize assets based upon the mere suspicion of a crime.

Yes, you read that right.

Under state law, you don’t have to be charged or even convicted of a crime to have your property seized.

Originally intended to cut off the cash flow of drug cartels, civil asset forfeiture is a practice that is independent of personal guilt or innocence. Instead, police charge or suspect your assets of being involved in a crime, and then take them.

Civil asset forfeiture flips the innocent-until-proven-guilty mantra of the American judicial system because defendants must prove their innocence to get their property back. In the case that defendants decide to hire an attorney, the legal costs can rival the worth of the assets, making such attempts both prohibitively expensive and, at times, pointless.

A coalition including the Alabama Policy Institute, the Heritage Foundation, and the Institute for Justice supported efforts to reform the law during the last legislative session. But as negotiations in Montgomery waded into the details and potential unintended consequences arose, time ran out and the bill failed.

Why?

“It’s a complicated issue,” explained the bill’s sponsor, Sen. Arthur Orr, R-Decatur, in an Al.com postmortem of the effort.

Part of that complication lies in the delicate balance between liberty and order, and how much we’re willing to cede one for the other. That’s an age-old question and one that’s not easily resolved.

Proponents of asset forfeiture contend it’s an effective tool for law enforcement and helps keep drug dealers off the streets. Critics believe it goes too far and might even create a perverse financial incentive for police departments to take property from those who cannot defend themselves in court.

Both sides have valid points.

Another complication lies in the inability to know exactly how asset forfeiture is being conducted in Alabama. Law enforcement officials say they process forfeitures ethically, while some critics believe it’s a shadowy and unaccountable practice.

That, however, should be the simplest complication to settle.

The recent reform bill called for the creation and maintenance of a publicly accessible database containing relevant asset forfeiture information – what agencies were involved, what assets were seized, their value, the existence of any underlying crimes, etc.

Such transparency would not only build trust in the process, it would give both sides a common set of facts to discuss rather than rumors and disputed anecdotes.

Still, opponents of a database point to the fact that asset forfeiture cases are already public record since they’re all handled in one of Alabama’s 41 circuit courts.

That’s true, but that’s like telling concerned citizens to look for a needle in a haystack … or 41 haystacks, actually. We should expect more from our government when private property is being seized.

Another objection is, of course, the cost of maintaining such a database.

But if the purpose of seizing assets is to deprive criminals, or suspected criminals, of property used in the commission of crimes, and not as a method to fund their agencies, then shouldn’t they be okay with a portion of whatever is seized going to fund a database that would build trust in the system?

Meanwhile, supporters and opponents of asset forfeiture are eagerly anticipating the court’s ruling in June. Regardless of the decision, Alabama’s asset forfeiture law should take a step in the right direction … and into the light.